Citation Nr: 0622654
Decision Date: 07/31/06 Archive Date: 08/10/06
DOCKET NO. 04-03 479 ) DATE
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On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Fargo, North Dakota
THE ISSUE
Entitlement to separate 10 percent disability ratings for
tinnitus in each ear.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
J. Kang, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1968 to February
1990.
This case comes to the Board of Veterans' Appeals (Board) on
appeal from a February 2003 denial of separation 10 percent
ratings for service-connected tinnitus. The Board notes that
in an October 2000 rating decision, the RO granted service
connection and assigned a 10 percent evaluation for tinnitus.
FINDING OF FACT
The veteran experiences recurrent tinnitus for which the
maximum schedular rating of 10 percent is assigned.
CONCLUSION OF LAW
The legal criteria for separate schedular 10 percent
disability ratings for bilateral tinnitus are not met as a
matter of law. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002 & Supp. 2005); 38 C.F.R. §§ 4.1, 4.7, 4.87, Diagnostic
Code 6260 (2006); 38 C.F.R. § 4.87, Diagnostic Code 6260
(2002); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran, through his representative, has asserted that he
is entitled to separate 10 percent disability ratings for
tinnitus because he has tinnitus in both ears.
Development of the Claim
The Board has considered the provisions of the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (2000) (VCAA) (codified at 38 U.S.C.A. §§ 5103, 5103A
(West 2002 & Supp. 2005)). The VCAA includes an enhanced
duty on the part of VA to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. The VCAA also redefines the obligations of
VA with respect to its statutory duty to assist claimants in
the development of their claims. The Board notes that the
RO's October 1990 rating decision that assigned a 10 percent
evaluation for service-connected tinnitus predated the
enactment of the VCAA.
However, the duty to notify and assist provisions of the VCAA
are potentially applicable to all claims filed on or after
November 9, 2000, the date of enactment. See Kuzma v.
Principi, 341 F.3d 1327 (Fed. Cir. 2003). In this case, the
veteran's claim for separate ratings was filed in February
2003, after enactment of the VCAA.
The United States Court of Appeals for Veterans Claims
(Court) has held, however, that the statutory and regulatory
provisions pertaining to VA's duty to notify and to assist do
not apply to a claim if resolution of the claim is based on
statutory interpretation, rather than consideration of the
factual evidence. See Dela Cruz v. Principi, 15 Vet. App.
143, 149 (2001); see also Valiao v. Principi, 17 Vet. App.
229, 232 (2003) ("Where the facts averred by a claimant
cannot conceivably result in any disposition of the appeal
other than affirmance of the Board decision, the case should
not be remanded for development that could not possibly
change the outcome of the decision.").
In present case, the facts are not in dispute; the resolution
of the veteran's appeal is dependent on interpretation of the
regulations pertaining to the assignment of separate ratings
for bilateral tinnitus. As explained in further detail
below, however, evidence of a bilateral disability would not
change the outcome of the appeal.
VA has no further duty, therefore, to notify the veteran of
the evidence needed to substantiate his claim, or to assist
him in obtaining that evidence, in that no reasonable
possibility exists that any further assistance would aid him
in substantiating the claim. See 38 U.S.C.A. § 5103A; Wensch
v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with
the VCAA is not required if no reasonable possibility exists
that any notice or assistance would aid the appellant in
substantiating the claim).
Analysis
The medical evidence shows that the veteran suffers from
tinnitus, which has been found to be related to his active
duty service. In an October 1990 rating decision, the RO
granted service connection for tinnitus and assigned a single
10 percent rating effective March 1, 1990, for tinnitus
pursuant to 38 C.F.R. § 4.87, Diagnostic Code 6260.
Significantly, Diagnostic Code 6260 was subsequently revised,
effective on June 13, 2003, to clarify that only a single
10 percent evaluation is to be assigned for tinnitus, whether
the sound is perceived as being in one ear, both ears, or in
the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note 2
(2006).
The case at hand had recently been subject to a VA-wide stay
on account of litigation before the United States Court of
Appeals for Federal Claims (Federal Circuit) concerning the
question of whether VA's regulations effective prior to June
2003 required dual evaluations for bilateral tinnitus.
In the veteran's December 2003 notice of disagreement, the
veteran, through his representative, asserted that separate
evaluations for bilateral tinnitus were warranted in the
present case.
In the June 2005 informal hearing presentation, the
representative cited to Smith v. Nicholson, 451 F.3d 1344
(Fed. Cir. 2006) in which the Court held that, with regard to
tinnitus, 38 C.F.R. § 4.25(b) allows for a separate
evaluation for each service-connected disability arising from
a single disease, unless otherwise provided.
The decision cited by the representative, however, has since
been reversed by the Federal Circuit to the extent that the
lower Court had incorrectly held that Diagnostic Code 6260
required the assignment of dual evaluations for bilateral
tinnitus. In Smith, the Federal Circuit cited to the
significance of VA's interpretation of its own regulations
and concluded that the Court erred in not deferring to that
interpretation, which in this case would limit the rating of
tinnitus to a single evaluation regardless of whether the
disability was unilateral or bilateral in nature. The
Federal Circuit similarly noted that there was no language in
the applicable diagnostic criteria clearly indicating that
dual evaluations were required. Id.
In view of the Federal Circuit's decision in Smith, the
interpretation of the pre-2003 version of Diagnostic Code
6260 asserted by the veteran's representative must be
rejected. For these reasons, the Board finds that the
arguments of the veteran's representative are without merit,
and the claim of entitlement to separate 10 percent
disability evaluations for bilateral tinnitus is denied as a
matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430
(1994) (where the law and not the evidence is dispositive,
the Board should deny the claim on the ground of lack of
legal merit).
ORDER
The claim of entitlement to separate schedular 10 percent
disability ratings for tinnitus in each ear is denied.
____________________________________________
Deborah W. Singleton
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs